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Can direct age discrimination be justified?

Yes. Unlike any other type of direct discrimination, such as direct sex or race discrimination, direct age discrimination can be justified.

Section 13(2) of the Equality Act 2010 provides that in relation to age, an employer does not discriminate against an employee if it can show that its treatment of the employee is a proportionate means of achieving a legitimate aim. In the Equality Act 2010 this same wording setting out the justification test is used for both direct and indirect discrimination. However, a line of European cases has established that to justify direct age discrimination the aims of the measure must be social policy objectives, such as those related to employment policy, the labour market or vocational training, as opposed to purely individual reasons particular to the employer's situation, such as cost reduction or improving competitiveness.

While on the face of it this requirement for social policy objectives appears to make it much harder for an employer, especially a private-sector employer, to justify direct age discrimination, in Seldon v Clarkson Wright & Jakes (a partnership) [2012] IRLR 590 SC, the Supreme Court recognised that many social policy objectives have private aspects to them. In that case, the aims of: the retention of associates; facilitating the planning of the partnership and workforce; and limiting the need to expel partners by way of performance management were found to be legitimate. The fact that they were directed to what could be regarded as being in the firm's best interests did not mean that they could not also be directly related to what is regarded as a legitimate social policy.

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